Terms Of Employment: What To Know About Free Speech In The Workplace

Google’s firing of an engineer who wrote a controversial memo has brought the conversation and debate about freedom of speech in the workplace to the forefront. One argument holds that diverse ideas are necessary for innovation and should be encouraged. Employees should not be compelled to bite their tongues at work and employers should not act like thought police. However, what if speech degrades another or conflicts with a company’s mission and code of ethics?

The right to speak freely is so deeply ingrained in the American psyche, it comes as a surprise to many that the First Amendment protection does not extend to the workplace. Congress is prohibited from “abridging the freedom of speech,” according to the U.S. Constitution, but that is about the extent of free speech protections in the United States. Most employment in the country is at-will, and businesses may demote or dismiss employees for almost any reason.

Private sector speech and the law

The National Labor Relations Act gives employees the right to negotiate their terms of employment, either with or without union support. Employee complaints about working conditions is an example of an issue that may come up. Employees who join together to improve working conditions may not be disciplined or fired for criticizing the company’s terms of employment.

Most speech, even hostile and hateful speech, may be protected when uttered as part of union activity. The U.S. Court of Appeals ruled in August 2017 in Cooper Tire & Rubber Company v. NLRB that Cooper Tire could not fire an employee on strike because he made racists comments towards replacement workers. Confrontation is considered a necessary condition of picketing, and engaging in picketing is a protected activity.

Should you fire a racists or misogynist employee?

While the law protects racists on the picket line, you are free to fire bigots in the break room, but should you? When speech is harassment, there is no debate that the employee must be dismissed. However, what do you do with an employee who insists on expressing political views ad nauseam or an evangelical Christian who spends lunch hour trying to convert fellow employees? This is where written company policy and an HR department with diplomacy skills may prevent the costs and disruptions created by firing an employee.

Google CEO Sundar Pichai, in a memo, justified firing their engineer by saying the employee violated their code of conduct. Spelling out behavior expectations in an employee handbook will help smooth over differences in the workplace. Employees must know that disruptive behaviors are not acceptable, and this includes speech that disrespects or threatens other employees. A one-on-one discussion with HR may be in order for those employees not clear on the policy.

Ideally, the hiring process weeds out applicants that are not a good fit for your business. Should an employee, after hire, reveal personal views that you find repugnant and in conflict with the mission of your company, it may be best to part ways. Profit is important and necessary to sustain your business, but it most likely isn’t your only purpose. You serve in and contribute to the communities where you work. While it may not affect your bottom line, employing someone whose speech borders on hate can damage the moral fiber of your company. It’s an intangible asset, but one worth preserving, even at the cost of having to onboard a new employee.